An employment appeal tribunal (EAT) has ruled that employers can fulfil their duty to make reasonable adjustments by only offering a disabled employee reduced hours for a fixed period.
In Secretary of State for Work and Pensions v Higgins, the employee, Mr Higgins, was employed at a Jobcentre but had been on long term sickness due to ill health since June 2009. In August 2010, his GP wrote a fit note which recommended a phased return to work on altered hours for the next three months.
His employer, the DWP, proposed that Mr Higgins build up to his normal hours over 13 weeks. Mr Higgins made a counter proposal that the period be extended to 26 weeks and refused to return to work unless this was met. The DWP refused this and dismissed him.
He appealed to an employment tribunal, which ruled that the failure to consider extending the return to work plan was a breach of the duty to make reasonable adjustments.
The EAT overturned this decision, saying that the tribunal had incorrectly identified that the substantial disadvantage being placed upon Higgins was the requirement for him to work. Instead it should have been the requirement for him to work his contractual hours.
“54. We have reached the conclusion that the Tribunal has failed to address in its reasoning a key issue in the case – namely, how far the step or steps which were in issue would have been effective in preventing any substantial disadvantage caused by the PCP [provision, criteria or practice].”
The tribunal also rejected any requirement for an employer to give some explicit guarantee of future review because this is implicit..
“56. ….If at the end of the period, the employee continues to suffer a substantial disadvantage, the duty to make adjustments would still apply and an extension to the period of reduced working hours may be necessary, but would be judged on the circumstances at that particular time."
The claim for unfair dismissal has been referred back to the employment tribunal for reconsideration.
You can find more about this case from the Workplace savings and benefits website.